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Service Tax - Case Laws
Showing 81 to 100 of 262 Records
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2014 (12) TMI 871
Waiver of predeposit of tax - Commercial and Industrial Construction Service - Held that:- Exemption Notification No. 45/2010-ST dated 20.07.2010 is relating to the transmission and distribution of electricity provided by the service provider to the service recipient. The Tribunal in the case of K. Shanmugavelu (2014 (7) TMI 936 - CESTAT CHENNAI), allowed the appeal in respect of contract with TNEB to facilitate erection of electricity transmission tower. In the present case, it is construction of buildings. Therefore, the said case law and the exemption Notification, prima facie, would not apply to the facts of the present case. Regarding demand of tax on Gandhigram Rural University, we find from the impugned order that the Gandhigram Rural University was collecting certain fees prescribed for imparting skills/ working knowledge on different fields. The case of Viswanathan Constructions Pvt. Ltd. (2013 (12) TMI 47 - CESTAT CHENNAI), as relied upon by the Ld. Advocate is in respect of construction of building by local municipal authorities for training of industrial workers, prima facie, would not apply to the facts of the present case - Partial stay granted.
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2014 (12) TMI 866
Parallel assessment proceedings for the same transactions, same period and in respect of the same amount by different Jurisdictional authority i.e. Delhi - Assessee was registered at Allahabad - Rent-a-cab-operator service - Penalty u/s 76 & 77 - Held that:- There is no dispute at all that the respondent no. 3 (at Delhi) has initiated parallel assessment proceedings against the petitioner and passed ex-parte order in original dated 22.5.2008 in respect of the same transactions and for the same period for which the petitioner was assessed by the jurisdictional assessing authority i.e. respondent no. 2. The only objection taken by the respondents department is that since the petitioner has failed to challenge within limitation the unauthorized ex-parte order dated 22.5.2008 passed by the respondent no. 3 and appeal against it was also rejected on the ground of delay and as such the demand created under the said orders cannot be withdrawn and is liable to be recovered from the petitioner.
Jurisdiction with respect to recipient of services - Held that:- Section 66 is charging section which provides for levy of tax on the value of taxable service rendered by a person to another. Section 67 provides for valuation of taxable service. Section 68 provides that every person providing taxable service shall pay service tax at the prescribed rates and in the manner prescribed. Neither the Act nor the rules provides for any double assessment nor it can be permitted in view of the fact that the transaction in question have been assessed by the jurisdictional authority. Article 265 of the Constitution of India provides that no tax shall be levied or collected except by authority of law. Thus the order dated 22.5.2008 passed by the respondent no. 3 was a complete nullity and therefore, the demand created thereunder was not legally recoverable from the petitioner.
If an authority or court lacks inherent jurisdiction to pass a decree or order, the decree or order passed by such authority or court would be non est and void ab-initio. The defect of jurisdiction goes to the root of the matter. It strikes at the very authority of the court to pass the order. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. Such defect has always been treated as basic and fundamental. Since the respondent no. 3 was not the assessing authority of the petitioner and has passed the impugned order dated 22.5.2008 without jurisdiction and without authority of law and also since the petitioner was assessed by the jurisdictional assessing authority in respect of the same transactions and for the same period and as such the impugned order dated 22.5.2008 and all consequential proceedings initiated by respondent no. 3 were nullity. It may be clarified that there is difference between irregular or wrong order and the order passed without jurisdiction. An erroneous and illegal decision is not necessarily void but if an order is passed by an authority without jurisdiction or without authority of law then it is void.
Impugned order dated 22.5.2008 was wholly without jurisdiction and same was passed by the respondent no. 3 in respect of the same transactions and for the same periods with respect to which the petitioner was assessed by the jurisdictional assessing authority i.e. respondent no. 2; I hold that the impugned order dated 22.5.2008 is a complete nullity. The order dated 10.10.2013 passed by the respondent no. 3 rejecting the recall application also cannot be sustained - The proper course for the respondent no. 3 was to recall the order dated 22.5.2008 when wholly undisputed facts came to his notice that respondent no. 2 is jurisdictional assessing authority who has assessed and passed assessment order in respect of the same transactions and for the same periods. It was a case of creation of a demand of service tax without jurisdiction. The respondent no. 1 in its order dated 30.1.2014 and respondent no. 5 in the short counter affidavit dated 16/18.7.2014 have accepted these facts. - Decided in favour of assessee.
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2014 (12) TMI 835
Waiver of pre-deposit - tribunal refused to waive the pre-deposit - prima facie case is in favor of assessee or not - undue hardship - construct the Petrol Pump, Canopies, Bunks at retail outlet - It was admitted that the service provided by them are covered in the Service Tax net but due to lack of knowledge, they did not charge the service tax against the works done during the year 2004-05, 2005-06 and 2006-07 - Held that:- Power of commissioner (Appeals) to condone the delay beyond 3 months - Held that:- In view of the settled law on the issue that Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond three months after prescribed period of limitation, which is also of three months, no exception can be taken to dismissal of the appeal by the Commissioner (Appeals), as barred by limitation. In view of settled legal proposition, the appellate Tribunal was not left with any authority or jurisdiction to interfere in the matter. In such view of the matter, it cannot be said that the appellant has any prima facie case, much less a strong, prima facie, case for waiver so as to dispense with the pre-deposit of the outstanding demand.
Once the appellant did not have any prima facie case, there was no reason or occasion for the Tribunal to consider the issue of any hardship to the appellant in making the deposit. - Decided against the assessee.
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2014 (12) TMI 834
Whether the Custom Excise Service Tax Appellate Tribunal was right in dismissing the appeal of the Revenue on the ground that the Committee of the Chief Commissioners had mechanically granted permission for filing of appeal without due application of mind; and whether the said aspect can be examined and made subject matter before the aforesaid Tribunal in an appeal under Section 86 (2) of the Finance Act, 1994?
Matter referred to larger bench.
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2014 (12) TMI 833
Services provided by APSRTC a State Owned organization - Service of tours of marriage parties, excursions, party meetings etc. - services of transporting of company employees - Held that:- From the records we find that the assessees are only renting their vehicles. We also find that the department could not bring out on record that the assessees are engaged in the business of planning, scheduling, organizing or arranging tours. In these circumstances, the assessees cannot be termed as tour operators. Therefore, the demands of Service Tax against them are not sustainable in law. - Decided in favor of assessee.
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2014 (12) TMI 832
Disallowance of Cenvat Credit - availment of goods transport service - Held that:- Perusal of the tender document dated 16.07.2009 shows that the property over the goods passes at the point of delivery, since the assessee supplier was liable to replace any broken or damaged goods that occurred in the course of transit or during the testing and trial at site. This indicates that the buyer of the goods i.e. Madhya Gujarat Vij Company Ltd. did not own the goods at the factory gate. This leads to a conclusion that when the appellant assessee was obliged under the contractual obligation to deliver the goods at its own risk and cost at the buyer’s point incurring separate cost of transport charge for which service tax was paid, there is no scope to hold that the contract value was inclusive of delivery cost. Further, Revenue has also not made any effort to include the cost of transport in assessable value. This further establishes that to discharge contractual obligation in respect of delivery of the goods at buyers point, it was liability of the assessee to make delivery FOR. Therefore, appeal of the assessee is allowed and there shall be no disallowance of Cenvat Credit. - Decided against Revenue.
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2014 (12) TMI 831
Levy of service tax for transporting levy sugar - service of transportation from the GTAs service tax - Held that:- Prima facie, the appellant does not have a case since the appellant is a Limited Company and they are liable to pay service tax on GTA services and no valid ground other than stating that it is statutory function has been specified. Transportation of sugar by a Limited Company cannot be considered as statutory function. Moreover, the appellant has paid entire amount of tax plus interest and only an amount of ₹ 1,16,670/- is to be paid. This amount was not paid on the ground that this was related to prior to 1.1.2005. It was pointed out by learned counsel that this amount was received only after 1.1.2005 and the claim of the appellant was that this was in respect of services rendered prior to 1.1.2005 and therefore, no liability arises is not acceptable. Prima face, the appellant does not have a case in their favour. Moreover, there is nothing left in the matter to decide at final stage. Learned counsel fairly agreed that the appellant is liable to pay service tax and will pay. As far as service tax and interest are concerned, is upheld. Penalties imposed have already been set aside - Decided partly in favour of assessee.
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2014 (12) TMI 830
Waiver of predeposit of tax, interest and penalty - Management Consultancy Service and Commercial Training or Coaching Service - Held that:- demand of tax on management consultancy is based on the balance sheet figure. It is seen that the adjudicating authority had given detailed finding that the applicant had not placed any evidence in support of their contention that no amount was collected and no service was rendered by them. It is seen that the applicant had not placed any evidence to substantiate their claim either from the service recipient or any contra or reverse accounting entries or explained the circumstances as to how the business transactions collapsed in both the cases. Hence, we find that the applicant failed to make out a prima facie for waiver of predeposit of entire amount of dues in this issue. - Partial stay granted.
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2014 (12) TMI 828
Denial of refund claim - Bar of limitation - Section 11B - Held that:- appellants were not required to pay service tax but the appellants have paid the service tax erroneously and the same has not been disputed by the department. In that circumstances, as per the Circular 108/2/2009-S.T., dated 29-1-2009, the department is not legally allowed to calculate the service tax and if they do so, the same is unconstitutional. Merely a payment made by the appellant erroneously, does not authorize the department to retain the same. Therefore, the provisions of Section 11B of the Central Excise Act, 1944 are not applicable as held by the Hon’ble High Court of Karnataka in the case of KVR Construction (2012 (7) TMI 22 - KARNATAKA HIGH COURT). Provisions of Section 11B of Central Excise Act, 1944 are not applicable. Therefore, the impugned orders are set aside - Decided in favour of assessee.
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2014 (12) TMI 827
Cenvat credit of Service Tax paid - Sales Commission - documents did not contain all the particulars as prescribed under Rule 4A of the Service Tax Rules, 1994 - Held that:- First appellate authority specifically records that the debit notes on which Cenvat credit was availed contains the details as required under Rule 4A of the Service Tax Rules, 1994 and also contains essential details required as per the provisions of Cenvat Credit Rules, 2004. After recording such a clear findings, the first appellate authority seems to have ventured into directing the lower authorities for verification regarding payment of Service Tax by the service provider to the exchequer. In my view and on perusal of the records, I find that this was never an allegation in the show cause notice. If there is no such allegation, verification as ordered by the first appellate authority, definitely traverses beyond the show cause notice which cannot be permitted. In my view, the appeal of the appellant is only to the extent that such an observation or verification was uncalled for seems to be correct and needs to be allowed. - Decided in favour of assessee.
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2014 (12) TMI 826
Abatement Notification No. 15/2007-S.T., dated 4-4-2007 - tour operator service - Remission of service tax - Refund claim - Unjust enrichment - Bonafide belief that assessee not bound to pay service tax - Passing of incidence duty to consumers - Held that:- Appellate Commissioner concluded that analysis of the invoices issued by the appellant clearly disclosed that no Service Tax component was included in and collected from the customers by the assessees; that the assessees had remitted Service Tax by treating the gross amount received as inclusive of Service Tax; that in an agreement with Oil India Ltd., the recitals disclose that the agreed rates were inclusive of all the taxes leviable; but however there was no specific collection of Service Tax. Contract price is inclusive of duty, there cannot be unjust enrichment. there is no error vitiating the order of the learned appellate Commissioner, warranting appellate interference. On the aforesaid analysis we find no merits in Revenue’s appeals, which are accordingly rejected - Decided against Revenue.
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2014 (12) TMI 825
Benefit of abatement in terms of Notification No. 15/2004-S.T., dated 10-9-2004 and 1/2006-S.T., dated 1-3-2006 - construction service - Held that:- Appellant is required to undertake the activity of plinth leveling, slab casting, plaster work (inner & outer), flooring and tiles terracing. Revenues’ contention that inasmuch as flooring, tiles terracing etc. relate to the finishing and completion activities stand specifically covered under the said activity, it has to be held that the appellant was providing only finishing services in which he will not be entitled to the benefit of abatement in terms of the Notification. However we find that it is not only flooring and tile activities which the appellant has undertaken. Reading of the entire contract shows complete construction activity which include flooring and tile activity. As such we find no infirmity in the views adopted by the Commissioner (Appeals) - Decided against Revenue.
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2014 (12) TMI 824
CENVAT Credit - Export of services or exempted services during the relevant period - Whether the Cenvat credit is required to be utilized up to 20% under Rule 6(3)(ii) of Cenvat Credit Rules, 2004 when the appellant is providing services both under the categories of exempted and taxable services - Held that:- Cenvat credit is required to be restricted only up to 20% of the credit taken by the appellant. Only dispute is whether C.B.E. & C. circular will have retrospective effect or not. Vide C.B.E. & C. Circular dated 9-5-2008, it has been clarified that export of services without payment of Service Tax should not be treated as an exempted services and accordingly, full credit would be admissible to the appellant. However, first appellate authority has held that circular issued on 9-5-2008 will have only prospective effect. In this regard, Hon’ble Supreme Court in the case of M/s. Suchitra Components Ltd. v. CCE, Guntur (2007 (1) TMI 4 - SUPREME COURT OF INDIA) has held that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospective. In view of the above law laid down by Supreme Court, it has to be held that the Circular dated 9-5-2008 will be applicable to the past period also, and appellant was rightly entitled to the Cenvat credit - Decided in favour of assessee.
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2014 (12) TMI 792
Waiver of pre deposit - Commercial or industrial construction service - construction of shops, flats and bungalows etc. for Raipur Development Authority - Held that:- Regarding the classification prior to 1.6.2007, the same has to be determined as per the definitions of taxable services during the relevant period. Whether the flats and bungalow constructed by the appellants satisfied the definition of construction of complex service requires a detailed look into to arrive at a finding thereon. - the appellants have already paid close to the entire service tax demand - Stay granted.
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2014 (12) TMI 791
Denial of cenvat credit - service tax paid by the insurance providers on various insurance policies taken out by the appellant - insurance policy has another address - Held that:- Insurance of plant and machinery, company’s vehicles, cash in box and in transit at various counters etc. and the services provided in relation to the business activity of an assessee. On merits, I find that appellant has made out a case that they are eligible for availment of such cenvat credit of the service tax paid on the insurance policies taken out for plant and machinery, cash in transit, cash in hand etc.
Second address mentioned in the insurance policy is also of the same assessee. It was claimed by the appellant assessee before the lower authorities that the second address indicated in the insurance policy is nothing but an open plot purchased and allotted to them by GIDC vide allotment letter dated 12.10.2010. On perusal of the records, I find that the premium paid on the insurance policies were prior to the allotment and in the said allotment letter it is specifically indicated that the appellants were handed over an open and vacant plot by the GIDC for further constructions. Be that as it may, since the open and vacant plot is also of the same assessee, even if the insurance policy covers the said plot, denial of cenvat credit of service tax paid seems to be not in consonance with the law. Appellant is eligible to avail cenvat credit and the impugned order to that extent is incorrect and is liable to be set-aside and I do so. Since I allowed the appeal of the appellant upholding reversal of small amount, there is no necessity of visiting the appellant of any penalty - Decided in favour of assessee.
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2014 (12) TMI 789
SSI Exemption - Renting of Immovable Property Service - Notification No. 6/2005-S.T. as amended by Notification No. 8/2008 dated 1.3.2008 - Held that:- during the year 2007-08 aggregate turnover of previous year to be eligible for SSI benefit should not be more than ₹ 10 lakhs and not ₹ 8 lakhs as held by the Commissioner. Since the appellant has not exceeded ₹ 10 lakhs turnover during the year 2007-08, the appellant is eligible for the benefit of SSI exemption during the year 2007-08. In the year 2007-08, the gross amount received by the appellant was ₹ 9,13,700 - appellant does not deserve to be penalized at all. Accordingly, we uphold the demand of ₹ 8,303 plus interest towards service tax. Demand for balance amount and penalty are set aside. - Decided in favour of assessee.
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2014 (12) TMI 788
Penalty u/s 76 & 78 - Held that:- Adjudicating Authority has not imposed the penalties under Section 76 which was contested by the Revenue before the First Appellate Authority and the First Appellate Authority also concurred with the views of the Adjudicating Authority. I find that the contention raised by the Learned Department Representative are having strong force inasmuch as the show cause notice which is issued in this case is on 14-2-2008 and the provisions of Sections 76 and 78 for imposition of penalties were invoked. The provisions of Section 78 of the Finance Act, 1994 were amended from 16-5-2008 which provided for imposition of penalties either under Section 76 or 78. In the facts and circumstances of this case, since the show cause notice is issued prior to the amendment, I find that both the Lower Authorities were in error in not imposing penalties under Sec 76 of Finance Act, 1994. The orders of both the Lower Authorities are liable to set aside to the extent they held the penalties under Section 76 cannot be imposed. Impugned order is set aside - Decided in favour of Revenue.
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2014 (12) TMI 787
Renting of immovable property service - service tax on movable fixtures/movable assets which were transferred to the tenants for using in the facility - Held that:- Commissioner (Appeals) took a totally new ground. He has stated that these are all fixtures fixed to earth and therefore cannot be removed and have to be considered as immovable assets. Further he has not revealed the evidence, on the basis of which, he has come to the conclusion. We were also not able to find any evidence for coming to such conclusion. The original authority had relied on trial balance sheet and financial statements to decide that these are movable fixtures. In the absence of any basis to show that the assets for which service tax is being demanded was immovable, we are unable to uphold the impugned order. In the result the impugned order is set aside - Decided in favour of assessee.
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2014 (12) TMI 786
Waiver of pre deposit - Information Technology Software Services - Held that:- On going through the definition ITSS as provided in clause (zzzze) of Section 65(105), the software supplied electronically only appears to be liable and therefore in the case which is before us where software has been provided after loading on physical media, is not covered. Therefore appellant has made out prima facie case for waiver on merits. Accordingly, the requirement of pre-deposit is waived and stay against recovery is granted - Stay granted.
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2014 (12) TMI 785
Denial of refund claim - input services used in export of goods - Renting of Immovable Property service at port - Service not notified under Notification 41/2007 - Held that:- As per Section 65(82) of the Finance Act, 1994, the port service means “any service rendered by a port or any person authorised by the port, in any manner, in relation to a vessel or goods.” A plain reading of the above definition clarifies that in port area any service received by the appellant is to be known as port service. If the service provider has paid Service Tax under Renting of Immovable Property Service, the same will be classified service as port service availed by the appellant. Same view has been taken by this Tribunal in the case of Pratap Re-rolling P. Ltd. (2014 (9) TMI 814 - CESTAT MUMBAI) wherein this Tribunal has held that “The board vide Circular No. 112/6/2009-S.T., dated 12-3-2009 has clarified that irrespective of the categorisation of the services under which the taxes have been paid, if the services received are notified in Notification 41/2007-S.T., the benefit of refund would be available.” In this case the Service Tax has been paid by the service provider under the category of Renting of Immovable Property Service but the service received by the appellant qualify under port service. Therefore, relying on the decision of Pratap Re-roling P. Ltd. (2014 (9) TMI 814 - CESTAT MUMBAI), the appellant is entitled for refund claims. - Decided in favour of asessee.
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